JulieAnn Rico, Office of General Counsel, and Jean Marie
Middleton and Sean Fahey, West Palm Beach, for appellant.

Isidro
M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for
appellee.

EN BANC

May,
J.

The
Palm Beach County School Board appeals an adverse judgment on
a retaliation claim. It argues the trial court erred in its
instruction to the jury on causation. We agree and reverse.
Because this requires us to adopt a new standard on causation
in line with the United States Supreme Court's decision
in University of Texas Southwestern Medical Center v.
Nassar, 133 S.Ct. 2517 (2013), and recede from our prior
decision in Guess v. City of Miramar, 889 So.2d 840
(Fla. 4th DCA 2004), we issue this opinion en banc.

The
plaintiff is of Vietnamese origin and worked in the
Information Technology Department for over ten years under a
series of annual contracts. She experienced hostile
encounters with her supervisor, who criticized her accent and
complained that she could not understand the plaintiff. This
caused the plaintiff to email her supervisor and the Board of
Directors about what she perceived as a hostile work
environment.

The
plaintiff never received a response from either her
supervisor or the school board. But, soon thereafter she
received a letter notifying her that her contract would not
be renewed for the next school year. She was ordered not to
report to work without explanation.

The
plaintiff ultimately filed a Verified Second Amended
Complaint, alleging three counts. The first count alleged
three Florida Civil Rights Act [FCRA] violations for
discrimination, a hostile work environment, and harassment,
based on race and national origin. Count two alleged a FCRA
violation for retaliation. Count three alleged a violation of
the Florida Public Sector Whistleblower Act.

During
the charge conference, the trial court ruled that the
Eleventh Circuit Civil Pattern Jury Instructions (Civil
Cases) and federal case law would be used to instruct the
jury on the claim of race and national origin discrimination.
There was no objection to this ruling. The school board then
proposed the court follow the Eleventh Circuit Civil Pattern
Jury Instruction 4.22 for the retaliation claim.

The
plaintiff objected and asked the court to rely on Carter
v. Health Management Assoc., 989 So.2d 1258 (Fla. 2d DCA
2008) and Guess to charge the jury on the
retaliation claim. The court ruled that the Carter
language of "not wholly or completely unrelated"
together with the language from Eleventh Circuit Civil Jury
Instruction 4.21, Retaliation 42 U.S.C. § 1981, would be
given.

At
trial, the court granted the school board's motion for
directed verdict on the hostile environment and harassment
claims in count one and the count three whistleblower claim.
This left the discrimination based on race and national orign
claim in count one and the count two retaliation claim for
the jury's determination.

The
jury returned a verdict for the school board on the
discrimination claim, but in favor of the plaintiff on the
retaliation claim. The court entered ...

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